TaxTMI 
TaxTMI 
2010 (10) TMI 175
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.... the Customs, Excise & Service Tax Appellate Tribunal, South Zonal Bench, Bangalore, (CESTAT), dated 19-3-2009, in Final Order Nos. 578 to 582 of 2009 [2010 (249) E.L.T. 415 (Tribunal)]. By the said order, CESTAT dismissed the appeals filed by the respondent herein, affirming the common order of the Commissioner of Customs & Central Excise (Appeals) being Order-in-Appeals dated 5-4-2007. 2. The respondent, M/s. Aurobindo Pharma Ltd., (APL) have their units in different areas surrounding Hyderabad. They are a company engaged in the manufacture of bulk drugs and bulk drug intermediaries. In the process of manufacture, they use considerable varieties of solvents like methylene chloride, methanol, acetone, isoprophy alcohol, ethyl aceta....
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.... before the CESTAT was, however, allowed and the matter was remanded. After such remand, the Commissioner (Appeals), by order dated 5-4-2007, held that spent solvent is not a product excisable to duty and accordingly rejected the department's contention. In the second round of litigation before the CESTAT, the Revenue was again unsuccessful. 4. The learned CESTAT, in the common order, observed that, earlier in the case of the APL, it was held that spent solvent is not excisable to duty and, accordingly, rejected the appeals. For ready reference, we quote the following from the impugned order. "We have considered the submissions made at length by both sides and perused the records. We find that in the case of the respondent i.e., ....
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....ous under the Pollution Control norms. Therefore, such removal cannot be held to be marketable goods and they are subjected to excisability. Although, the Revenue had taken the grounds for valuation but the assessee had contested the issue of excisability. Since the question of excisability is fundamental to the matter, the Commissioner (A) was justified in taking up this issue and deciding it in the light of the earlier judgment. There is no merit in this appeal and the same is rejected. It is also seen that this judgment of the Tribunal is a recent judgment given in 2008 and was following various judgments of the Tribunal. As the learned Commissioner (Appeals) has correctly come to the conclusion that the spent solvent in all these ....
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....49 (S.C.), Collector of Central Excise, Baroda v. United Phosphorus Ltd. - 2000 (117) E.L.T. 529 (S.C.), CCE, Chandigarh-I v. Markfed Vanaspati & Allied Industries - 2003 (153) E.L.T. 491 (S.C.), Collector of Central Excise, Patna v. Tata Iron & Steel Co. Ltd. - 2004 (165) E.L.T. 386 (S.C.) and CCE, Hyderabad-III v. Natco Pharma Ltd. - 2007 (208) E.L.T. 573 (Tri.) and contends that the spent solvent does not satisfy the twin tests laid down by the Supreme Court in Markfed Vanaspati & Allied Industries and S.D. Fine Chemicals Ltd., and, therefore, no interference is called for. 7. Two issues arise for consideration. First, whether the department, having accepted the principle in the earlier case, can be permitted to take contra stand....
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....n 2006 (195) E.L.T. 142 (S.C.), wherein it has been held that if no appeal is filed against an earlier order of the earlier appeal involving the identical issue was not pressed by the revenue, the revenue is not entitled to press the other appeals involving the same question. In Birla Corporation Ltd., this Court observed as follows : In the instant case the same question arises for consideration and the facts are almost identical. We cannot permit the Revenue to take a different stand in this case. The earlier appeal involving identical issue was not pressed and was, therefore, dismissed. The respondent having taken a conscious decision to accept the principles laid down in Pepsico India Holdings Ltd., 2001 (130) E.L.T. 193, cannot be p....